Elliot v. Concord

Bell, J. We think a careful comparison of the statutory provisions bearing upon this case, will furnish the rule for its decision. The Revised Statutes, ch. 57, § 1, prescribes the liability of towns. “ In case any special damage shall happen to any person, or to his team or carriage, by reason of the obstructions, insufficiency or want of repair of any highway or bridge in any town, the person injured shall recover his damage in any action against such town.” [208] The- second section following and the fifth section of chapter 59, give to the town a remedy over. “ The town shall have a remedy over against any surveyor of highways, through whose fault or neglect the said damage happened.” “ If any person shall place in any highway or street any timber, lumber, stones, or anything whatever to the incumbrance or obstruction thereof, he shall be liable to the town for all damages and costs, which said town may be compelled to pay to any person who has sustained damage by reason of such incumbrance or obstruction.” These provisions point out the general policy of the law, which is to subject the town to the action of the party who suffers damage from the “ obstructions, insufficiency or want of repair of a highway,” and leave the town to obtain its indemnity from those through whose neglect or misconduct the defect of the highway has arisen. It is a settled principle, that any person who places an obstruction in a public highway, or causes any defect in it, is, at common law, liable to any person who sustains a special damage from that cause. Woolrich on Ways 53; Williams’ Case, 5 Co. Rep. 73; 1 Ch. Pl. 126; and we may well suppose that one motive, perhaps a principal one, for the statute provision imposing this liability on towns, was to avoid the constantly recurring question, whether the party in fault was the town or some other party, and the consequent risk that many meritorious actions might fail. The charter of this railroad is a public law. Stat. 1848, ch. 659. The provision under which they claim and exercise the right to construct their road across public highways, is found in the sixth section. “ And if said railroad shall, in the course thereof, intersect or cross any canal, turnpike, road, or other public highway, the said railroad shall be so constructed as not to obstruct the safe and convenient use of such canal, turnpike, road, or other highway.” It is assumed, in the argument, that the railroad corporation had the right, by virtue of this charter, to obstruct the [209] highway, while their road was in process of construction; but it seems to us that this was a right not conferred upon them by this section, however it might be granted by implication, in a case where the railroad could not otherwise be built, which, it is apparent, was not this case. The railroad is to be so constructed as not to obstruct the safe and convenient use of such highway, either while it is making, or after it is completed. The language used applies, in its natural construction, equally to both these cases. The case finds that the railroad corporation, though thus forbidden to do so by their charter, did so construct their railway that they did obstruct the safe and convenient,use of this road, at the time and place where this accident occurred, and thus occasioned the damage of which the plaintiff complains. The case further finds that the obstruction was occasioned by the laborers, employed in building the road, having filled in earth and sand about two-thirds of the distance across the highway, for the purpose of making an embankment for the rails, and this embankment, at its termination and at its sides, in the travelled part of the highway, was so steep that it could not be passed over safely with a carriage. This, then, seems to us the precise case described in section 5, before quoted, where the person, (which word includes corporations, Rev. Stat. ch. 1, § 8,) placing anything whatever in the highway, to the incumbrance or obstruction thereof, is made liable to the town for the damages and costs, which the town may be compelled to pay to any person injured. In such a case, it cannot admit of question that the town is liable, in the first instance, to the sufferer. Willard v. Newbury, 22 Vt. Rep. 458; Batty v. Duxbury, 24 Vt. Rep. 155. The nonsuit was, consequently, improperly ordered, and it must be set aside, that the case may stand for.trial.